The Very Cutting Edge of International Arbitration

I was privileged to be included in the recent European Users’ Council Symposium at Tylney Hall, near Basingstoke, England, and organized by the London Court of International Arbitration. Present were international practitioners and arbitrators; inside council of global corporations who regularly use international arbitration; professors of international dispute resolution; representatives of organizations that promulgate rules and administer international arbitrations; and attorneys from many countries who prepare and appear before international arbitrators. A more rarified group would be hard to imagine, and the discussion was provocative and stimulating.

The format was for moderators to bring up topics that had been previously submitted by the attenders, and then to solicit comments or concerns from the group. The topics alone indicate the sharpness of the dialogue.

For example:

What happens when parties to an arbitratrion agreement decide to modify the terms of the agreement addressing how arbitrators shall be appointed, and instead agree that they will jointly choose a panel chair, and subsequently will exchange nominees for proposed party-appointed arbitrators?

Are there best practices for a party’s contact with their party-appointed arbitrators? And what are the practical consequences when a panelist becomes too overbearing an advocate?

Can arbitrators afford to restrict a check for conflicts of interest to only three years, as recommended by the IBA?

What is the proper response when a proposed Chair is not only interviewed, but finds herself being privately investigated by one of the parties?

English practice permits practicing barristers to sit as arbitrators in matters in which a party is represented by counsel from the same Chambers. Might this practice give rise to an obstacle for enforcement under the New York Convention in certain non-English jurisdictions?

Are retired judges suitable arbitrators?

What should an arbitrator do when an allegation is made that a contract is null and void because of corruption, but the allegation cannot be substantiated because of ongoing criminal investigation? And what is the proper standard of proof of alleged corruption?

Might the decision of a court enforcing an arbitration award be considered an expropriation giving rise to a claim under an investment treaty?

What (if anything) is the role of the arbitrator in determining the scope and propriety of witness preparation — a practice in which American standards so strongly differ from other jurisdictions?

Are expedited arbitration rules working, and achieving their goal of quicker and cheaper outcomes?

If arbitration is too expensive for end-users, what makes them so?

Is it appropriate for a panel to consider a preliminary issue — such as a defense of statute of limitations — if doing so might dispose of the entire controversy? Or does the panel inappropriately signal its own concerns by ordering that kind of early focus on only one aspect of the matter? In the same regard, is summary judgment appropriate in arbitration, or does it invite challege through the law of the site or the law of the jurisdiction where enforcement is being sought?

In considering an award of costs, is a panel well advised to require that the prevailing party produce an affirmation from the client that the costs sought have actually been incurred and paid? And should in-house counsel’s costs be included? Should a party recover its actual costs, or only the reasonable costs?

Can the parties, or the administering institution, put a deadline on the panel’s issuance of an award? What would happen if the panel failed to comply?

These and many other topics made for a fruitful day and a half in an idyllic setting.

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